Guarantees in Vienna: A Review of Potential Guarantees for the US Not to Withdraw from the JCPOA

۰۷ بهمن ۱۴۰۰ Essays

Essay on Etemad Newspaper January 27, 2022 -

The original text is in Persian and the following translation was done by Ai.

One of the differences in the tactics adopted by the new nuclear negotiation team compared to the previous one is the lack of much daily news coming out of the negotiations. This, of course, makes the work somewhat easier and brings the internal space more under control. However, according to what has recently been reported from Vienna, one of the axes of disagreement, along with identifying the justification for sanctions and verifying their removal, is providing a guarantee from the United States to not repeat the unilateral withdrawal from the JCPOA as long as Iran remains faithful to its commitments.

Of course, given the history that occurred during the Trump era, this demand from the Islamic Republic of Iran is meaningful. But at the same time, we must clarify our image of guarantees in international interactions in order to implement this demand and any results that may be obtained as a result of it. The types of guarantees in the international environment that we will discuss in this note may not be complete and exhaustive, but they are the most important:

1. International legal guarantee: First of all, we should know, and we all know, that the JCPOA is not a treaty or legal agreement, but a political agreement. Of course, this does not mean that it does not have any legal consequences. In law, even oral understandings are considered responsible for fulfilling obligations, let alone an agreement between several countries with the presence of the European Union and under the observation of all the eyes of the political world.

In addition, since the JCPOA was approved and consolidated by UN Security Council Resolution 2231, it has acquired an additional legal dimension, and regardless of the presence or absence of a country in its negotiations and commitments, all UN member states (including the United States) are considered obliged to obey the UN Security Council resolution.

At the same time, there are no strong legal guarantees for the JCPOA and Resolution 2231, but for all international treaties. That is, whether a dispute is arbitrated in an international court - for example, the International Court of Justice - or whether there is a blatant violation of the obligations of one country towards another country or a company or institution or even international organizations, and above all, a violation of a Security Council resolution, there is no immediate enforcement guarantee for this proven violation. And until the matter reaches the highest levels of the Security Council and is recognized, for example, as a threat to international peace and security or something similar, it is not possible to expect the courts and obligations to have a guaranteed enforcement effect, as in domestic law. However, it is worth emphasizing again that the obligation is the responsibility of the committed or guilty party, but the enforcement guarantee is not easily available.

In the first way, the publication of any document, however binding, by the political authorities of a country in the international arena (for example, a written commitment by the current US President that his country will not withdraw from the JCPOA while confirming Iran's commitment or giving approval to banks and companies) is, just like the JCPOA itself, within the will and discretion of the current US President, and its violation will be due to changes in circumstances during the term of this president or a change in the powers of the current occupants of the White House: When the violation of the principle of the JCPOA, which is a detailed document attached to a Security Council resolution, is implemented as soon as a decision is made, it will not be very difficult to violate the orders and statements issued by the US government.

2. Domestic legal guarantee: Domestic legal guarantee can never be a real guarantee and go beyond a symbolic step for a country's international obligations: Even if a case is approved in a country's parliament and the commitment becomes the country's domestic law, there is still no guarantee to withdraw from this commitment and restore that law with a new, violating law. In the case of the United States, in many cases the president has the authority to issue an executive order and suspend a law passed by both houses of parliament, especially on the basis of national security and a state of emergency. Of course, in the case of the JCPOA, both during the negotiations and approval of the original text (2015) and in the revival negotiations that are currently underway, from a political point of view and the number of votes in both houses of parliament, such a resolution is fundamentally impossible.

3. Technical guarantees: Regarding practical and technical guarantees, of course, the matter is somewhat closer to reality. The nuclear levers on which Iran is relying today in negotiations, namely the amount and percentage of enriched uranium purity, as well as advanced enrichment equipment (IR6 and IR9 centrifuges, as well as the related piping and electrical panels), can be used as a guarantee that the United States will not withdraw from the JCPOA: It has been heard that proposals to keep these items sealed and under the supervision of the International Atomic Energy Agency but on Iranian soil are being discussed, which has not been agreed to by the United States and the other negotiating parties due to the reduction of the nuclear escape time (i.e., the hypothetical time from the moment of decision that Iran can obtain nuclear weapons). It is clear that, given the sensitivity of the issue, handing over these items to any other country for safekeeping under the supervision of the Agency cannot be considered a guarantee, because at the heart of this Iranian privilege, if the host country does not reconcile with the West, at least the nuclear levers will not reach Iran.

4. Economic and commercial guarantees: The most important support for political and legal contracts in the international environment is trade and the benefits derived from it in the field of economics. Partnerships with the JCPOA member states, the United States and other countries of the world, imports and exports between them, and especially their investments in Iran in a hypothetical environment can create a conflict of interests in the world with the JCPOA, which makes it more difficult to break it. But in the real environment, many of the above are accompanied by many obstacles:

Iran's imports from other countries take time and require policymaking and foreign exchange. Developing exports requires more time and more infrastructure. Trade with the United States, which could be the greatest leverage for not withdrawing, is the most difficult and limited on both sides. Contracts such as purchasing aircraft from Boeing require time to be implemented, as well as the support of wealthy regional competitors who find it easy to disrupt these contracts with tempting offers to American companies. Investment is also the least likely, given the history of the United States' withdrawal and especially the possibility of someone with Trump's profile coming to power in the United States. In addition, the lack of complete opening of bank transfer channels due to Iran's restrictions on using dollar transactions (the U-turn rule) is also problematic in all of these cases.

5. Political guarantee: The last item mentioned in this note as a guarantee for the implementation of the JCPOA and the United States' non-withdrawal is the political guarantee and the pledge of American credit. This was also implemented to some extent during the Trump era and reduced the credibility of the United States in the international arena. However, given the unusual nature of Trump and his government, as well as the financial and economic power of the United States, it did not have an immediate and concrete effect on the violation of the US commitment. But the reality is that not every president and government will be willing to pay the political costs of unilaterally withdrawing from the JCPOA, given Iran’s commitment.

In addition, in the latter two cases, the more time passes since the successful implementation of the JCPOA, the stronger this root becomes and the less likely the US will effectively withdraw from it.

Therefore, it is recommended that while pursuing all possible avenues and putting pressure on the negotiating parties through the levers at hand, two political and economic solutions seem to be the most realistic and accessible. Therefore, it is necessary, first of all, during and after the success of the negotiations, to provide the basis for trade between them not only with the members of the JCPOA but also with all the major and influential countries in the world, and to try to maintain these trade relations for a considerable period of time. In addition, regional negotiations, especially with Arab countries, will reduce their motivation to disrupt Iran’s economic relations with numerous countries and companies, including in cases such as Boeing, and will contribute to the stability of the JCPOA and its commercial revenues, which will be the greatest guarantee of the political agreement.

At the same time, creating an international space in different circumstances so that Iran is considered a rightful holder in various equations from the perspective of international public opinion will help guarantee Iran's rights under the JCPOA, etc.

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